Opinion
STANIFORTH, J. Nurseryland Garden Centers, Inc. (Nurseryland)
appeals from a postjudgment order awarding $21,988.75 attorney fees to John C. Mabee (Mabee).1 The issues presented here surface in this factual-procedural matrix.
Mabee sued Nurseryland for breach of a written lease. The complaint pleaded inter alia an attorney fees clause contained in the lease [423]providing: “Should either party commence any legal action or proceeding against the other based on this Lease, the prevailing party shall be entitled to an award of attorney’s fees as set by the court, including costs of appeal, if any.” (Italics added.) The prayer asked for “reasonable” attorney fees.
Upon jury trial Mabee presented no evidence of the reasonable attorney fees incurred in the action nor did he argue the issue to the jury or submit jury instructions on the matter. The attorney fee clause was in evidence as part of the lease agreement. The jury returned a verdict of $44,178 in favor of Mabee. After the juiy was excused, Nurseryland’s attorney stated he would file motions for new trial and for judgment notwithstanding the verdict. Mabee’s attorney then informed the court: “There is also the matter of the attorney’s fee clause in the Lease. I will notice my motion.” The court then responded, “The verdict will be entered. Allright—Do you consider you both lost or both won?” Nurseryland’s counsel, Mr. Klitgaard, responded: “I know I lost.” Nurseryland did not object to the proposed postjudgment hearing on attorney fees.
On that same day (Apr. 30, 1976) the clerk entered the judgment on the verdict and notified counsel thereof in writing. A series of postjudgment motions followed. On May 7, 1976, Mabee filed his memorandum of costs. Nurseryland opposed the cost bill but after hearing the court entered its order taxing costs and fixing the amount of $2,552.16.
On May 17, 1976, Nurseryland filed its motion for judgment notwithstanding the verdict and one week later, its motion for new trial. Before these motions could be heard—and after several continuances—Nursery-land withdrew both motions (June 11, 1976) but not before it filed its notice of appeal (June 7, 1976) from the judgment entered on the jury verdict.
On June 28, 1976—after the notice of appeal was filed—Mabee by motion sought an order awarding reasonable attorney fees under the appropriate clause in the lease agreement. Nurseryland opposed the motion as untimely, beyond the court’s jurisdiction and in derogation of Nurseryland’s right to have the issue tried by the jury.2 After hearing, the trial court awarded Mabee reasonable attorney fees for services performed “to and including June 21, 1976” in the sum of $21,988.75. The document was entitled “Judgment After Jury Trial.”
[424]Nurseryland appeals contending: (1) Mabee lost his claim to attorney fees when he failed to pursue that issue at trial, (2) Nurseryland urges the trial court lost jurisdiction to amend the judgment after entry of the judgment and filing of the notice of appeal, and (3) the trial court lacked the intent and authority and the grounds for awarding the attorney fees as cost.
In analyzing Nurseryland’s contentions, our point of beginning is this hornbook rule: “[T]he extent of lessors’ [Mabee’s] right and lessee’s [Nurseiyland’s] duty [with respect to a reasonable attorney fee] is measured by the terms of their agreement.” (Genis v. Krasne, 47 Cal.2d 241, 248 [302 P.2d 289].)
The cases collected in Heidi v. Miller Heating & Air Conditioning Co., 271 Cal.App.2d 135, 138 [74 Cal.Rptr. 695], Robinson & Wilson, Inc. v. Stone, 35 Cal.App.3d 396, 414 [110 Cal.Rptr. 675], and 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, section 119 et seq., pages 3270 et seq., demonstrate an almost infinite variety of attorneys’ fee clauses. Each gives rise to separate and distinct rights and duties. Therefore of necessity we must focus on this precise language of this attorney fee provision. Its plain explicit unambiguous language evidences this intent. It is the court, i.e. the judge, not the jury who determines the right to and amount of attorney fees.
A legion of cases without comment equate “court” with the “judge”3 in interpreting attorney fee clauses. Black’s Law Dictionary (4th ed. 1951) page 425 states that the word “court” and “judge” or judges are frequently used synonymously in statutes. (See also Newby v. Bacon, 58 Cal.App. 337, 339 [208 P. 1005].)
Further the words when viewed in context point unmistakably to a similar conclusion. The attorney fees are to “includ[e] costs of appeal, if any.” Therefore, the clause here clearly contemplates not only attorneys’ fees earned on trial, but also postjudgment lawyer fees including those fees incurred on appeal. The jury has long been discharged when the [425]court would assess such fees. There can be no doubt but that it is the judge, i.e., the “court” that determines this issue. Moreover, the court’s authority to determine and award attorney fees is to the “prevailing party” as an incident to that party’s success. Winning the underlying cause of action on trial is the sine qua non. (See Huber v. Shedoudy, supra, 180 Cal. 311, 314.) This language presupposes the identification of the prevailing party. This can only be discovered at the close of the trial of underlying cause of action—not before. To require parties to a lawsuit to submit evidence on attorney fees and to argue that matter to the trier of fact before the “prevailing party” has been ascertained does not make procedural sense.
Nurseryland fails to distinguish between the allowance of attorney fees to the prevailing party as an incident to the principal cause of action and other distinct factual situations where attorney fees are in whole or in part of the cause of action. Witkin distinguishes between an award to the prevailing party against the losing party as an incident to judgment and six other distinct species of award of attorney fees. (4 Witkin Cal. Procedure (2d ed. 1971) Judgment, § 118, pp. 3269-3270.)
For example, where attorney fees are incurred in a prior action, or sought in a proceeding as damages—as for example in false imprisonment or malicious prosecution suits—or where recovery is sought in an action by an attorney against his client for an agreed or a reasonable fee, then the claim for attorney fees is part of the damage sought in the principal action. Only in such circumstance would the attorney fee be required to be pleaded and proven—as any other item of damages—at trial. No similar procedural and evidentiary base is required where “the attorney fee was not the cause of action but an incident to it.” (Huber v. Shedoudy, supra, 180 Cal. 311, 314.)
Moreover, “ ‘. . . The averment that the fee claimed was a reasonable amount is not necessaiy (Carriere v. Minturn, 5 Cal. 435); ... As an averment was unnecessary, so also was a finding. The conclusion of law that defendant was entitled to recover attorneys’ fees rested upon the provisions of the mortgage, and the court could determine what amount would be reasonable without hearing any testimony thereon. [Citations.]’ ” (Ibid.)
Attorney fees are not like the usual item of damages, for the court may allow a reasonable attorney fee in the judgment without hearing evidence or making a finding as to the amount of such fee. (Genis v. Krasne, supra, 47 Cal.2d 241, 246.) “ ‘The experienced trial judge is the best judge of the value of professional services rendered in his court, [426]. . (Serrano v. Priest, 20 Cal.3d 25, 49 [141 Cal.Rptr. 315, 569 P.2d 1303].) “[T]he starting point of eveiy fee award, . . . must be a calculation of the attomey’s services in terms of the time he has expended on the case.” (City of Detroit v. Grinnell Corp. (2d Cir. 1974) 495 F.2d 448, 470; cited with approval in Serrano v. Priest, supra, at p. 48, fn. 23.)
What is required is pleading and proof of the contract provision. Attorneys’ fees cannot be allowed to the successful litigant “without pleadings and proof (admission) that there is a contract provision for them.” (Genis v. Krasne, supra, 47 Cal.2d 241, 246.)
hi Citizens Suburban Co. v. Rosemont Dev. Co., 244 Cal.App.2d 666, 684 [53 Cal.Rptr. 551], the court reasoned that “[although the complaint did not in terms pray for litigation expenses, it sought specific performance of the . . . agreement and incorporated the agreement ... by reference. The agreement was placed in evidence. Under these circumstances there was adequate pleading and proof of the contract provision under which the award was made.” Thus, as was said in Genis v. Krasne, supra, 47 Cal.2d 241, 246-247, the “lessors, in the prior action, properly set up their claim for attorneys’ fees before it could be known whether there would occur an essential fact (lessors’ prevailing in the prior action) which would give rise to a duty of lessee to pay attorneys’ fees.”
A recent California Supreme Court decision defined “prevailing party” in these terms: “ ‘As used in this section [Civ. Code, § 1717] “prevailing party” means the party in whose favor final judgment is rendered. ’ (Italics added.)” (International Industries Inc. v. Olen, 21 Cal.3d 218, 222 [145 Cal.Rptr. 691, 577 P.2d 1031].)
These authorities make untenable Nurseryland’s contention it was entitled to a jury trial on the issue of attorney fees. Its position is bereft of support either in case authority or statute.
Nor do Nurseryland’s contentions appeal to reason. One glancing look illustrates the incongruous situation that would develop by a requirement of a jury—midstream in the process of determining liability of the respective parties—to hear from both sides proof and argument as to the nature, extent and value of the attorney services rendered and yet to be rendered. Equally untenable would be a rule directing a trial court in a nonjury trial to assess attorney fees for the prevailing party before ascertaining who will occupy that honored status. Such tendered procedure is impractical, unreasonable, incapable of application.
[427]Nurseryland correctly contends the trial court lacked authority to award attorney fees as costs; “[u]nless authorized by statute or agreement attorney fees ordinarily are not recoverable as costs.” (International Industries Inc. v. Olen, supra, 21 Cal.3d 218, 221.) “Where the right to attorney’s fees, as in this case, is based upon contract and not upon statute, recovery, if at all, must be had upon that contract, and such fees cannot be taxed as costs. (Code Civ. Proc., sec. 1021.)” (City Investment Co. v. Pringle, 49 Cal.App. 353, 355 [193 P. 504]; Genis v. Krasne, supra, 47 Cal.2d 241, 246.)
Mabee never sought to recover his attorney fees as costs. His claim rests upon contract not statute and his contract does not require the attorney fees be taxed as costs. (See Genis v. Krasne, supra, 47 Cal.2d 241, 247.)
Nor does Civil Code section 1717 convert every contractual entitlement of a prevailing party to attorney fees into a statutory right recoverable only as part of costs.4
Nurseryland next contends the trial court lost jurisdiction to reopen the judgment for the purpose of adding attorneys’ fees (1) after the entry of judgment, and (2) after Nurseryland’s notice of appeal was filed. These contentions must be considered separately.
[428]Until-the jury determined who was the “prevailing party” the court was unable to assess and award attorneys’ fees. Mabee had pleaded the attorneys’ fee clause and prayed for reasonable attorneys’ fees. Proof of the contractual entitlement to attorney fees—the lease clause—was placed in evidence. When the jury verdict was announced, the “prevailing party”—Mabee—was identified. Only then could Mabee’s counsel make the appropriate motion for award of fees. However, immediately after the verdict was announced, counsel for Nurseryland stated his intention to move for judgment notwithstanding the verdict and new trial. Only thereafter did Mabee’s counsel state his intention to move for attorney fees. This proposed procedure was without objection from Nurseryland. Only after this apparent concurrence did the clerk enter the judgment and notify the parties in writing.
Nurseryland submits no authority holding the attorney fee order must be made before entiy of judgment; that by failure to act in such speedy—nay—premature—fashion the court lost jurisdiction to reopen a judgment once entered. If such practice were followed, it would stay entry of judgment—with all of the rights, obligations attending thereon pending determination of a subsidiary matter. This is not the law.
The stage in the litigation when the court hears the motion for and assesses attorney fees against the losing party varies with the contract terms and the factual context of each case.
For example, in Gonzales v. Internat. Assn, of Machinists, 213 Cal.App.2d 817, 818 [29 Cal.Rptr. 190], the evidence on the issue of attorneys’ fees was introduced during the hearing on the lessor’s motion for attorneys’ fees after the court had expressly reserved judgment upon this specific issue of attorneys’ fees. In Rabinowitch v. Cal. Western Gas Co., supra, 257 Cal.App.2d 150, the trial court’s memorandum decision had expressly reserved jurisdiction over the matter affixing the amount of reasonable attorney fees.
In Oakland Cal. Towel Co. v. Roland, 93 Cal.App.2d 713 [209 P.2d 854], the court said at page 719: “It was further stated in the Painter [Painter v. Estate of Painter, 78 Cal. 625 (21 P. 433)] case, at page 627: ‘This authority given the court could only be exercised when the fee, now in dispute, was to be allowed by an order made after final judgment, and the allowance is necessarily an incident to such judgment when given against the claimant as plaintiff in the action.’ In accordance with the above, the trial court, if it be so inclined, may allow a reasonable fee for services on appeal.”
[429]To the same effect see Adams v. California Mut. B. & L. Assn., 18 Cal.2d 487 [116 P.2d 75]. And in Citizens Suburban Company v. Rosemont Development Co., supra, 244 Cal.App.2d 666, 684, the contractual provision authorizing attorney fees was adequately pleaded and proven. However, the issue of attorney fees and expenses was not included in the joint pretrial conference statement or the pretrial order. (There was no assertion of a deliberate omission.) After the principal issues in the case were tried and a decision in plaintiff’s favor announced, entitlement to cost and expenses, including attorney fees, was declared in the trial court’s conclusions of law. Thereafter, a hearing was held upon adequate notice and evidence relative to the award was taken.
In San Luis Obispo Bay Properties, Inc. v. Pacific Gas & Elec. Co., 28 Cal.App.3d 556, 573 [104 Cal.Rptr. 733], the court held the prevailing party on appeal was entitled to reasonable attorney fees for services rendered on the appeal and “the matter may now properly be remanded for the addition of this amount.” (See also Coast Bank v. Holmes, 19 Cal.App.3d 581, 597 [97 Cal.Rptr. 30].) Associated Convalescent Enterprises v. Carl Marks & Co., Inc., supra, 33 Cal.App.3d 116, 120, [108 Cal.Rptr. 782] held: “Since such issue required a judicial determination [of the attorney fee claim] any order made with respect thereto is appealable as a final determination on a collateral matter severable from the general subject of the litigation.” (See also Serrano v. Priest, supra, 20 Cal.3d 25, 50 [141 Cal.Rptr. 315, 569 P.2d 1303].)
Based upon the foregoing authorities, we conclude there is no requirement in law, reason, or the contract of these parties requiring the award of attorneys’ fees be made before entry of judgment or be lost. In fact, Nurseryland’s motions questioned the status of the “prevailing party.” They compelled further postjudgment proceedings including the postjudgment hearing on attorney fees. Until Nurseryland’s motions were resolved—favorable to Mabee—no attorney fees hearing was appropriate.
Where, as here, the award of attorney fees is made in a postjudgment hearing, the appropriate proceedings include: (1) amendment of the judgment to include the fee award (Kirk v. Culley, 202 Cal. 501, 510 [261 P. 994]), (2) an amendment to the finding of fact and conclusion of law and entering appropriate judgment in accord with the findings and conclusions thus amended (Cirimele v. Shinazy, 124 Cal.App.2d 46, 53 [268 P.2d 210]; Heidt v. Miller Heating & Air Conditioning Co., supra, 271 Cal.App.2d 135, 139) or (3) by order on a [430]collateral matter made after judgment (Code Civ. Proc., § 904.1, subd. (b); Associated Convalescent Enterprises v. Carl Marks & Co., Inc., supra, 33 Cal.App.3d 116, 120; Wisniewski v. Clary, 46 Cal.App.3d 499, 502 [120 Cal.Rptr. 176]; Oakland Cal. Towel Co. v. Roland, supra, 93 Cal.App.2d 713, 719; Painter v. Estate of Painter, 78 Cal. 625, 627 [21 P. 433]; Bauguess v. Paine, 22 Cal.3d 626, 634, fn. 3 [150 Cal.Rptr. 461, 586 P.2d 942].) We conclude the entry of judgment upon the jury verdict offers no procedural bar to a postjudgment award of attorney fees.
We turn to Nurseryland’s ultimate contention—the trial court could not enter an order for attorney fees when an intervening notice of appeal had been filed. The effect of the motion for judgment notwithstanding the verdict and motion for new trial was to hold in abeyance the determination of the “prevailing party.”
Similarly, the notice of appeal placed a question mark on the status of Mabee as the prevailing party. Only when this court’s judgment became final could it be stated that Mabee was the “prevailing party”; therefore, entitled to attorney fees. (International Industries, Inc. v. Olen, supra, 21 Cal.3d 218, 222; Oakland Cal. Towel Co. v. Roland, supra, 93 Cal.App.2d 713, 719.)
The matter is remanded with directions to the trial court to make and enter its appropriate order for attorney fees encompassing services performed by Mabee’s counsel at trial, in posttrial proceedings and on appeal; as so modified, the judgment is affirmed.
Wiener, J., concurred.
Nurseryland’s appeal from the original judgment was considered by this court in Mabee v. Nurseryland Garden Centers, Inc., 84 Cal.App.3d 968 [149 Cal.Rptr. 105]. The judgment for Mabee was affirmed.
Nurseryland sought a writ of prohibition from this court seeking to stay the superior court proceedings (4 Civ. No. 16124.) This court denied the petition; Nurseryland’s remedy by way of appeal (Code Civ. Proc., § 904.1, subd. (b)) was adequate.
Genis v. Krasne, supra, 47 Cal.2d 241, 246; Huber v. Shedoudy, 180 Cal. 311, 313, 314 [181 P. 63]; Stockton Theaters, Inc. v. Palermo, 124 Cal.App.2d 353, 364, 365 [268 P.2d 799]; Newby v. Bacon, 58 Cal.App. 337, 339 [208 P. 1005]; Rabinowitch v. Cal. Western Gas Co., 257 Cal.App.2d 150, 158-159 [65 Cal.Rptr. 1]; Downer Corp. v. Union Paving Co., 172 Cal.App.2d 126, 129 [342 P.2d 64],
An interesting intramural contention—not advanced by Nurseryland—asserts Mabee’s attorneys’ fees are recoverable by statute and therefore only as part of the cost bill. The reasoning is as follows:
“Section 1717 [Civ. Code] provides: ‘In any action on a contract, where such contract specifically provides that attorney’s fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements. [1] Attorney’s fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney’s fees is void. [U] As used in this section “prevailing party” means the party in whose favor final judgment is rendered.’ (Italics added.)” (International Industries, Inc. v. Olen, supra, 21 Cal.3d 218, 222.) and the contention continues: Section 1717 changes Mabee’s contract rights into statutory rights to attorneys’ fees recoverable only as part of the cost bill; therefore Mabee lost his right to attorneys’ fees by failure to claim them in his cost bill. This logic is faulty. In the first place section 1717 applies to a species of attorney fee contract where ’’one of the parties” is entitled to an award. Such is not the case here. Either party—whoever prevails—wins the entitlement. This conclusion is supported by the decision of Associated Convalescent Enterprises v. Carl Marks & Co., Inc., 33 Cal.App.3d 116, 120 [108 Cal.Rptr. 782], declaring: “The sole purpose of section 1717 is to transform a unilateral contract right to attorney’s fees ‘into a reciprocal provision giving the right to recover fees to whichever party prevails [in the contract action].’ [Citations.]” In International Industries Inc. v. Olen, supra, 21 Cal.3d 218, 223, the court held: “Section 1717 is obviously intended to create a reciprocal right to attorney fees when the contract provides the right to one party but not to the other.”